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Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry

Sex Registries as Modern-Day Witch Pyres: Why Criminal Justice Reform Advocates Need to Address the Treatment of People on the Sex Offender Registry

Perhaps the most irrefutable statement that can be made about modern day America is this: we have a penchant for putting people in cages. More than any other nation on the planet, we rely on incarceration as the fix for our social ills.

America’s unprecedented prison boom spawned advocates who work tirelessly to put the police state toothpaste back into the tube. As a result, despite a steady media diet of cops and robbers police procedurals, the rhetoric on crime policy has begun to shift. The country appears to be approaching something akin to apostasy. We have begun to lose our faith in imprisonment as an effective response to problems like drug addiction. For the first time since the data was tracked, state and federal prison populations declined in 2014, albeit slightly, from historic highs.

Yet amidst this wave of reform, one group of people continue to languish in the collective “harsher is better” mindset: sex offenders.

The American journalist H.L. Mencken once said that

The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

Mencken was right: if you’re interested in defending human freedom, get ready to spend a great deal of time defending people you might not like. The guns of oppression are aimed at the friendless before they swing to the connected and moneyed.

And no one is more friendless than those on the sex offender registry.

The sex offender is the modern-day witch: the registry, the contemporary pyre. A scarlet letter for our technocratic era, forcing people to register as sex offenders “is what puritan judges would’ve done to Hester Prynne had laptops been available.” While undoubtedly there are those on the registry who have been convicted of blood curdling crimes, the designation is also extended to those who have been convicted of far more banal ones.

Reformers urgently need to draw public attention to the cruel and unnecessarily harsh treatment afforded to sex offenders within the justice system. Sex offender registries are rapidly proliferating and becoming an increasingly popular back-end tool for feeding people into the carceral state.

Geographic exclusion zones, pictured above, limit where people on sex offender registries are lawfully able to live, work, and “loiter.” Source: 6th Circuit Court of Appeals

In understanding the reasons why sex offenders ought to be a higher priority for mainstream justice reform advocates, a grasp of the evolution and operation of the sex offender registry is critical.

The forebears for modern sex offender registries and so-called “sexual psychopath laws” first appeared in late 1930s California, and largely targeted LGBTQ individuals. What began as relatively simple lists of individuals convicted of crimes grew in the wake of two high profile murders of children in 1937, which spawned a moral-sexual panic: simultaneously horrifying and captivating the nation.

Operating on the premise that the American public had a right to know about the sordid pasts of those it deemed miscreants, registries began to spread from state to state, city to city, arguably arriving in modern form in the wake of the grisly rape and murder of Megan Kanka in New Jersey in 1994 — the namesake for Megan’s Law (the colloquial term by which sex offender registries are most commonly known).

Perhaps owing to our puritan roots, it has been said that everyone in America lies about sex, because everyone lies about the designs that they have on their neighbors’ bodies.

Our institutions may not be terribly different.

In 2003, in a case titled Smith v. Doethe United States Supreme Court was asked to consider whether the Alaskan sex offender registry was so punitive as to be constrained by the ex post facto clause of the United States Constitution, which is meant to stop punishments from being increased after the fact. In asserting — falsely, as has been conclusively demonstrated — that the risk of re-offense posed by sex offenders was “frightening and high,” the Court green-lit a cross-country, decade-long race to the bottom in denying those on the registry essential and time-honored legal protections.

Despite having been given two recent high-profile opportunities to revisit its holding and erroneous factual assertions, the Supreme Court has so far chosen not to do so. Worse, in the concurring opinion in 2017’s Packingham v. North Carolinathe conservative wing of the Court reaffirmed Smith’s central fallacywhich laid the foundation for present-day sex offender registriesJustice Anthony Kennedy, who authored the majority opinion in both Smithand Packingham, remained silent on the elephant in the room that was given life by his authorship in Smith: the erroneous assertion on re-offense rates.

Population of individuals incarcerated vs. Population of individuals on a registry, 2005–2016. *Corrections data for 2016 not yet available.

In the wake of Smith, sex offender registries and their attendant restrictions have grown at a brisk clip. The number of people listed on a sex offender registry in the United States has grown from slightly more than 500,000 in 2005 to 874,725 todayResearch has found that sex offender registries have a disproportionate impact on minorities.

While registries and their attendant requirements are sold as enhancing public safety, research consistently indicates that they are exceedingly bad at this goal. One explanation is because, contrary to Smith’s baseless assertion and what most believe, people on the registry have one of the lowest rates of re-offending out of any class of criminal.

A tenuous relationship with facts notwithstanding, registries are wildly popular: a whopping 94% of Americans support their existence and increasingly harsh treatment of those required to register (though most people report that they never actually check the registry). Even as the public appears to be finally questioning the wisdom of putting so many people in cages, the same cannot be said for its seeming willingness to put so many in virtual cages out of fear of what they “might” do.

Because of its popularity, public officials who depend on votes for their livelihood — like lawmakers and judges — are loathe to tinker with the registry, other than to devise ever-more severe punishments for its inhabitants.

As a piece of criminal justice machinery brought to bear on people, the registry can best be thought of as a two-headed beast: a 1–2 punch of distinct effects.

The first head is the direct impact on the lives of those on the registry itself. With no Due Process or Ex Post Facto brakes to slow down the juggernaut, it has become weaponized. A far cry from its origins as a simple list of purported perverts, it has morphed into a web of prison-without-bars that would make Franz Kafka blush. The oppressiveness, breadth, and lack of due process inherent in these modern day sex offender registries led a federal court in Colorado to label it a cruel and unusual punishment; a legal conclusion virtually unheard of outside of the cloistered world of death penalty litigation.

The second head is the tangle of legal requirements for those on the list: a knot of vague, illogical, ever-expanding, and sometimes contradictory laws that even lawyers, judges, and law enforcement have difficulty interpreting.Examples can include strict time limits on reporting even minor changes in information (such as online accounts) or residence, residency restrictions, or even the clothing one wears. States promise swift felony prosecutions if individuals do not observe hyper-technical compliance with these requirements.

Unsurprisingly, it is exceedingly easy to run afoul of the requirements, keeping those that do trapped in a cycle of legislatively-crafted “crime” that can be tantamount to a de facto life sentence. “Failure to register” is fast becoming the crime of choice for returning those on the registry to prison. In 2008 in Minnesota, failure to register charges became the most common reason sex offenders were returned to prison. Between 2000 to 2016, Texas saw a more than 700% increase in FTR arrests, from 252 in 2005 to 1,497 in 2017. To borrow a phrase from computer programming, this is not some kind of criminal justice bug.

It is a feature.

If America has a civil death penalty, putting people on the sex offender registry is it. In a recent experiment, when individuals were given the choice between being labeled a child molester or dying, most chose death.

The numbers of those currently on the registry are staggering, and continue to increase each year. Absent seismic shifts in criminal justice policy, the trend will likely continue. In a nod to Mencken’s admonition, the model popularized with sex offender registries is quietly being exported to other classes of crime — including white collar crimesmethguns, and animal abuse — despite little evidence that such registries accomplish much beyond branding its inhabitants irredeemable.

Decades on, ghosts of dead children are dragooned into supporting legislation that vastly expands the powers of the state, with few prepared to offer informed criticism. Despite doing little to protect children from the varied and pernicious harms that they face, sexual or otherwise, such “first-name” legislation is crafted by political operatives who use the memory of innocents in the same way one might use a human shield. No one with a beating heart is unmoved by the plight of parents of a murdered child; nor could one could easily criticize a law named in memoriam without simultaneously disrespecting that plight. Optics such as these are not accidental, they are political.

In order to sell policies to the public, our political leaders have often created boogeymen. During the heyday of the drug war, the boogeymen pressed into service were so-called superpredators, a heavily racialized term describing young people with “no respect for human life and no sense of the future.”Ostensibly toting Glocks and selling death to our communities, they ended up selling the belief in prison-as-protection, government-as-protector: a profoundly punitive turn in our legislation and discourse.

Even as we find ourselves in a new era marked by bipartisan acknowledgement of the need for criminal justice reform, in some areas we continue to be influenced by this same appeal to boogeymen, even if their shape and form changes. Instead of “super” predators, we’re now faced with “sexually violent” ones.

As with witches, the modern-day sex offender is largely a creature of our own creation, acting as a sort of repository for many of our collective moral anxieties around sex. While a baked-in ick factor often turns many erstwhile warriors into silent observers, awareness and informed response is badly needed from those within the criminal justice community.

And it is needed soon.

The Trials of Keith Davis, Jr: How Baltimore Prosecutors Pursued a Police Shooting Victim

Protestors at the Baltimore City State’s Attorneys Office

The Trials of Keith Davis, Jr: How Baltimore Prosecutors Pursued a Police Shooting Victim

“Victory,” the Baltimore State’s Attorney’s Office tweeted in October after Keith Davis Jr. was found guilty of second-degree murder.

Keith’s wife Kelly and members of the activist group Baltimore Bloc who have been advocating for Davis for years called attention to the language: the SAO, headed by celebrated, purportedly progressive prosecutor Marilyn Mosby, best known for indicting the six officers charged in the death of Freddie Gray, declared “Victory” instead of invoking “Justice.”

It was evidence that, in Kelly Davis’ words, Mosby and the SAO have “a vendetta” against her husband.

Keith Davis Jr.’s story begins on June 7, 2015, when he was shot by the Baltimore Police three times near the Park Heights neighborhood in West Baltimore. The police claimed he robbed an illegal cab driver or “hack,” then ran away. Police took off in pursuit and shot at him a total of 44 times. Kelly Davis was on the phone with her then-fiancee as police first fired the dozens of shots. “Baby,” he told her, “I’m gonna die.”

Eventually, Davis was chased into a nearby garage, where police say he hid and refused to surrender. Police continued their gunfire and said that when they finally approached Davis, he lay shot, barely conscious, and holding a handgun.

Davis survived but was hit with 15 charges by the SAO, including assault on police officers and armed robbery. In December 2015, the SAO added firearm possession with a felony conviction. When Davis went to trial in February 2016, he had been in jail for more than 200 days, far longer than Maryland law requires as part of the right to a speedy trial (180 days). Davis was then found guilty on that possession charge only, likely because the hack cab driver testified that Davis did not resemble the man who robbed him.

Not long after the trial, on March 2, 2016, Davis was charged with the murder of Kevin Jones, a man shot hours before Davis was shot by police. The state said ballistics evidence proved the weapon Davis was found guilty of possessing when he was shot was related to Jones’ murder. There were, however, no eyewitnesses to the Jones murder and there was no personal connection between Davis and Jones.

At the murder trial in May 2017, Davis’ defense attorney Latoya Francis-Williams claimed that the gun was planted and that Davis’ fingerprints (really, a partial palm print) were put there while he was unconscious in the garage. Davis’ attorneys also said that the state violated Brady v. Maryland when it failed to disclose DNA evidence that contradicted the state’s narrative at his trial on armed robbery and firearm possession charges.

Kelly Davis and Baltimore activists suggested that the police covered up what was the first police shooting after Freddie Gray’s death by planting the gun. Accusations of such high levels of police misconduct have become particularly compelling given the massive scandal surrounding the Baltimore Police Department Gun Trace Task Force, which was federally indicted this year for, among other things, stealing money and stealing, dealing, and even plantingdrugs.

Unsurprisingly, given the weak and circumstantial evidence, Davis’ trial ended with a hung jury.

At Davis’ second murder trial, in October 2017, the state introduced a star witness, David Gutierrez, who testified that Davis confessed to the murder while he was in Gutierrez’s cell, purchasing jailhouse liquor from a cellmate.

On Oct. 17, Davis was found guilty of second-degree murder.

But on Dec. 4, the Circuit Court for Baltimore City granted Davis a new trial — mostly due to Gutierrez’s specious testimony. At the motion for a new trialhearing, Davis’ lawyers presented Gutierrez’s cellmate, Itisham Butt, who testified that he did not sell liquor (he is a devout Sunni Muslim) and that he had never even met Davis in jail at the time Gutierrez claimed. Davis’ lawyers also argued that, whereas the SAO had presented Gutierrez as just a drug dealer, he had actually been more involved in a RICO case tied to a Texas drug cartel, and had committed violent crimes such as disposing of a dead body by burning it. Francis-Williams, Davis’ attorney, characterized Gutierrez as an “enforcer” who is now “parading around the country testifying in homicide cases in order to gain leniency for his gruesome crimes.”

According to a study by the Northwestern University School of Law’s Center on Wrongful Convictions, such “jailhouse snitch” testimony is the leading cause of wrongful convictions in capital cases. “For the most part,” the study’s authors wrote, “the incentivised witnesses were jailhouse informants promised leniency in their own cases or killers with incentives to cast suspicion away from themselves.”

In September, a superior court judge in Orange County, California ruled that mass shooter Scott Dekraai could not be sentenced to death because the local sheriff’s department failed to disclose information about its use of what has been described as a network of jailhouse informants.

The Circuit Court in Baltimore did not go so far as to say there was “misconduct” by the SAO, but it granted Davis a new trial anyway—due to what Judge Mays referred to as the state presenting a “sanitized” version of Gutierrez’s criminal record to the jury.

“If you recall in October the State’s Attorney for Baltimore City sent a tweet to the world, ‘victory’,” Davis’ attorney Francis-Williams said in a statement released after Davis was granted a new trial. “Well, we just snatched victory from the jaws of defeat. Our message to the world is that this is what Justice looks like and we will not stop fighting until Mr. Davis’ name is cleared. The State will rue the day she decided to use Mr. Davis’ case as a political football.”

Undeterred, the SAO announced they would try Davis once more.

It will be the third time he faces murder charges. Kelly Davis, meanwhile, maintains the only thing her husband has ever been guilty of is surviving a police shooting.

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Are Harris County Officials Trying to 'Sabotage' Bail Reform with Misleading Data?

Are Harris County Officials Trying to 'Sabotage' Bail Reform with Misleading Data?

Bail has been operating differently in Harris County, Texas, lately. In April, a judge issued an injunction in response to a lawsuit filed against the county by nonprofits Civil Rights Corps and Texas Fair Defense Project and law firm Susman Godfrey alleging that its practice of jailing people who couldn’t pay bail was unconstitutional. Under the injunction, no one is supposed to be kept behind bars because they’re too poor to afford bail.

Now, some people deemed to be low-risk through an assessment are getting released on a personal bond, or a promise to pay a certain amount if they fail to appear in court, without having to post it up front. Other defendants are given a secured bond, but must be released from jail within 24 hours if they say they can’t pay.

County officials are arguing that the new system isn’t working. Late last month, they shared data with the Texas Tribune, and more recently with In Justice Today, showing that nearly 45 percent of people released from jail after 24 hours failed to return to court for subsequent hearings.

But those numbers are not what they seem. Local public defenders and criminal justice advocates argue that judges and county officials themselves shoulder much of the blame.

“All of the failure to appear problems go back to the county,” Jay Jenkins, project attorney for Harris County with the Texas Criminal Justice Coalition, argued.

It used to be that defendants were typically required to return to court for a hearing seven days after being released. But earlier this year, the courts changed the rules to require misdemeanor defendants booked in the jail to come back within one business day. According to advocates and attorneys, the change was meant to improve due process by offering people a full hearing shortly after arrest.

But the requirement that defendants return within one business day of being booked has presented two challenges. One is technical: The county is trying to update its information system, but the system is still automatically, but incorrectly, setting arraignments for those charged with misdemeanors for seven days after release in the computer system, according to Alex Bunin, Chief Public Defender for Harris County.

So jail employees often tell people that they have to return in seven days, as it says in the computer, not one business day, said Sarah Wood, another public defender. Defendants take those instructions to heart, sometimes more than what’s on their physical paperwork, which should contain the correct date. “They’re very insistent: ‘No, the jailer told me it’s next week.’ They defer to authority,” she said. Others may have trouble understanding the paperwork, which can often be difficult to read due to small type, handwriting, legalese, and confusing instructions. Even “lawyers have a hard time figuring it out,” Wood said.

“The reason that [the failure to appear rate] is not higher is because lawyers working the bail hearings have been actually telling their clients, ‘I don’t care what the sheriff tells you… I don’t care what the court system says online when you look it up — your date is the next day,’” Jenkins of the Texas Criminal Justice Coalition said.

The county disputes this account. “I don’t think that the high failure rate has anything to do with confusion over court dates,” said Ed Wells, court manager for Harris County. He contended that if judges or court staff discovered that a defendant was given paperwork with a different court date, they would reset the hearing for that date. That wouldn’t necessarily account for those who are still being told by jailers to come back in seven days, even if their paperwork says one business day. But Wells argued he doesn’t think that’s occurring, although he noted the sheriff’s office would better be able to respond. (The sheriff’s office didn’t respond to a request for comment.) “All of the bond documents I’ve seen, when the sheriff is putting in that court date, they circle it and bring it to the attention of the person,” Wells said.

Even if everyone received a correct court date, many would still risk missing their hearings, since it can take as long as 20 hours for someone to be processed and released from jail.

“We had a person in court a few weeks ago … who was granted a personal bond [and released] at 7am inside the jail, and when they were filling out his bond paperwork they were putting the court date on there of the same day,” Wood said. “We were like, ‘Well how do you expect him to appear when you’re telling everyone it’s going to take five or six hours to process out of the jail?”

Emails reviewed by In Justice Today showed public defenders discussing clients who were still being processed at 3:30 a.m., even though their court hearings were later that morning. Given that the clients still had eight to 12 hours to go before getting released, there was no way they could make their scheduled hearings.

Wells argued that that this issue wasn’t common. “I don’t think it’s the norm at all,” he said.

Even if defendants get released early in the morning, that gives them little time to go home and then return. After a night in jail, many will want to sleep and shower. It can be tough to get back quickly if they don’t have cars or money to pay for a cab, according to Elizabeth Rossi, an attorney with Civil Rights Corps.

Meanwhile, because the judges aren’t yet comfortable with the new system, they’re more likely to release someone who is deemed to be low risk on a personal bond. That person can then access pretrial services. But that means the higher-risk people, who may face barriers to returning to court, are being booked into the jail. After 24 hours, if that person can’t afford bail, he’s released — but typically without any conditions or services like text message reminders that could help him come back.

“Any problems with nonappearance simply indicate that the county needs to figure out a better system for accurately informing people of their court dates, providing reminders of those court dates, and providing transportation or services to people who have trouble getting to court,” Rossi said. “The answer is not to lock up those people who can’t pay money bail until they plead guilty in order to get out.”

Wells declined to comment on the risk levels of people failing to appear. “That is something we’ll be looking at,” he said.

The data itself may also be misleading. In a letter to Harris County Attorney Vince Ryan reviewed by In Justice Today, Commissioner Rodney Ellis, who had received a copy of the report, raised questions about how failures to appear were being calculated. “While the data in this report is interesting, it lacks some key context that would be useful for interpretation,” including how bond failures were defined and reported, he wrote.

Wells acknowledged that a person who failed to show up for a single court hearing over one arrest would be counted as multiple failures to appear if he or she faced multiple charges — one count for each charge, if each was assessed with a bond, which is typical. “I don’t know how you would count that differently,” he said.

But that means the failure rate isn’t just counting individuals — instead, a small group could be driving up the numbers. “Just a small population of people are really making the percentage extremely high,” Bunin, the public defender, said. He noted one client was facing three charges for the same incident, and when he missed three court dates, that was counted as nine failures to appear. Yet it was just one person and one case.

And many of the people failing to come back to court are the public defenders’ homeless or severely mentally ill clients. “Those people cycle through our system constantly,” Bunin said. “I think if you took those people out of the mix, the number would drop down quite a bit.”

Some advocates see the county’s data, and the practices driving the numbers up, as a form of opposition to the court order reforming Harris County’s bail system. “The judges are doing this to make the failure rates high so when the case comes up they can say, ‘See, we tried and it didn’t work,’” Jenkins argued. “This is sabotage.”

The data also belies the positive side of the story: fewer people behind bars. “We shouldn’t lose sight of the fact that more than 6,000 people have gone home to their families and homes and communities as a result of this order,” Rossi said.

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